Category: Office of Special Counsel

Recently, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), which enforces the anti-discrimination provisions of the Immigration and Nationality Act (“INA”), issued a technical assistance letter providing guidance on what is called “over-documentation.”

Over-documentation occurs when an employer requests or accepts more documents than required for the proper completion of Section 2 of the I-9 form. For example, an employer might record a U.S. Passport, which is List A document, and also a social security card, which is a List C document. Because an employer need only record either a List A or a List B and List C document, such action would constitute “over-documentation.”

It’s a common thing by employers. I see it all the time. Here’s what the OSC said about this practice:

“An employer may violate the anti-discrimination provision of the INA if it requests more or different documents or rejects reasonably genuine-looking documents on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process.”

“If an employer requests more than one List A or a combination of one List B document and one List C document, a violation of the anti-discrimination provision of the INA will depend upon whether the employer made any of those requests because of an employee’s citizenship or immigration status or because of an employee’s national origin.

Based on my experience, most employers that have over-documented their I-9s have not “requested” more documents than required, but instead, have simply just recorded everything the employee gave them. So, that raises the question of what should an employer do if an employee hands them numerous acceptable documents for the I-9 completion.

Here’s my suggestion: Either tell the employee exactly what you need (i.e., a List A or a List B and List C document), and let the employee then choose what to provide, or just grab the document(s) that you need and not record the rest.

The current government shutdown will affect several areas of immigration compliance for employers and individuals. While attempting to be comprehensive, the following post is by no means exhaustive of the shutdowns impact.

First, a quick guide of what we consider to be the most significant disruptions to employers and individuals:

The inability of individuals in obtaining replacement Social Security Cards.

ICE will continue to issue Subpoenas and Notices of Inspection to employers, but audit processing may be delayed.

Second, a more detailed list of the impact of the shutdown broken down by the various agencies of the US government that interface with employers in the Immigration arena.

US Department of Homeland Security

USCIS Immigration Benefits

As an agency funded by filing fees, USCIS will continue normal operations with regards to most of its adjudication operations during the shutdown. Any fee for service activities performed by USCIS will not be affected by the shutdown. This means that employers (and beneficiaries) may continue to file petitions for employment visas (temporary or permanent), adjustment of status applications, and other benefits like EADs and advanced parole petitions. Naturalization ceremonies however appear to have been cancelled. USCIS directs users to report to interviews and appointments as scheduled and to call 1-800-375-5283 with questions.

E-Verify

Given that E-Verify is a free service, it will be unavailable to users during the shutdown. This means that employers who want to: enroll in E-Verify, query new hires, view or take action on any case, add, delete or edit user IDs, reset passwords will have to wait until operations resume. As well, the E-Verify Customer Support and related services are closed. In its most recent alert, E-verify provides the following practical guidance:

The three-day-rule for new E-verify cases is suspended until further notice.

The timeframe for resolving TNC (FAN) will be extended. The days the government is shut down will not count towards the 8 day deadline.

Employers should NOT take any adverse action against an employee due to E-Verify interim cases status.

Customs and Border Protection

CBP will continue to operate, as its mandate is deemed an essential function of the US Government. Border security and customs procedures and processes at the various US land and sea ports of entry are expected to remain unchanged and will continue to accept applications for admissions. However, delays may be expected as CBP is giving a furlough to more than 10 percent of its staff.

US Department of State

At this moment, the Bureau of Consular affairs will continue operations through out its worldwide consular offices until current funding is runs out. Funding is only expected to last a few more days. Fox News Latino reported that after current funding is exhausted consular posts will focus solely on diplomatic services and emergency services for American citizens. Further, visa processing, except in emergency cases, will cease if the shutdown is prolonged. Employers should note that in previous shutdowns, business reasons have not qualified for emergency visa processing.

US Department of Justice

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.

Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, check here.

The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status.

US Department of Labor

Most of the DOL agencies like Wage and Hour and Occupational Health and Safety, will completely close during the shutdown. Further in the Immigration arena, the DOL has announced that the Employment & Training Administration, which handles Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification will cease operations.

OFLC’s web site, last updated September 26, 2013, announced that OFLC will neither accept nor process any applications or related materials (such as audit responses) LCAs, Prevailing Wage Determinations, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online account.

This will result in delays and will likely prevent an an employers ability to file petitions with USCIS, or engage in recruitment efforts, when those petitions require an application approved by DOL. The current backlog of adjudications will likely grow during this time.

Social Security Administration

SSA personnel will continue to perform essential services like issuance of checks for beneficiaries. However, it will not accept applications for new or replacement Social Security cards or issue receipt notices for those that have lost or stolen cards. This may impact an employers ability to complete I-9 forms.

We will continue to update our readers as more information becomes available.

Recently, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical advisory letter in response to a subcontractor inquiry who was facing a difficult question by its general contractor on the project. The general contractor requested the subcontractors employees, prior to being allowed to work on the project, to provide the original documents (e.g., U.S. passport, drivers license, social security card) that were provided to the subcontractor during the I-9 verification process. The subcontractor asked the OSC if such practice was permitted, and if not, what remedies were available to the subcontractor for the general contractors alleged improper request.

The OSC punted on responding to these questions directly. While stating that it is not allowed to provide an advisory opinion on any set of facts or involving a particular individual or entity, the OSC did say that:

(a) there were practical issues or problems associated with the general contractors request to have the subcontractors employees to present the same documents due to the passage of time between the original completion of the I-9 and the request by the general contractor;

(b) such practice might result in subcontractors employees perceiving they have been discriminated against due to their citizenship or immigration status, if they are ultimately barred from employment; and

(c) the subcontractors employees might allege discriminatory I-9 practices in violation of the anti-discrimination provision of the Immigration and Nationality Act.

The OSCs letter touches on a topic important to clients who have contract workers on their properties and premises. The general question asked is, What can I do to make sure that contract workers are authorized to work, since I can be held responsible if they aren’t? Here are a few things to consider:

As the owner and not the employer, you are only at risk if you know or have constructive knowledge that a contractors employee is unauthorized to work in the U.S.

Solid contractual provisions between you and the contractor that also flow down to any subcontractors are key. Make sure they address immigration law compliance, the I-9 verification process, E-verify (if applicable), as well as indemnification for non-compliance.

The applicable regulations state that the I-9 form is to be used only for enforcement of the immigration laws, so requests to audit I-9 forms, obtain copies of I-9 forms, or to obtain copies of documents presented to complete I-9 forms should be discussed with legal counsel.

As the owner, your legitimate interest is access to property and not employment, so you want to separate the two concepts with any requests or obligations you place on your contractors. For example, you may require individuals working on your property to present appropriate identification prior to having access to your premises. This is separate and distinct from any I-9 form process that occurs between your contractor and its employees.

Requiring your contractors to go through an immigration compliance audit by a third party you select may be the route to go, especially if you are allowing access to safety-sensitive, valuable, highly regulated or critical infrastructure property.

The bottom line is that there are right and wrong ways to ensure immigration compliance by your contractors and to reduce risk that you will be responsible for any non-compliance on their part.

Should an employer just hire U.S. citizens to avoid any risk of violating the Alabama Immigration Act, HB 56? It’s not a trick question. The clear answer is “No!”

For fear of running afoul of HB56, and all the penalties contained therein for employing an unauthorized worker, an Alabama employer may conclude it is just best to hire only U.S. citizens, since hiring individuals who are permanent residents or authorized aliens, for example, is too risky. That conclusion would a mistake.

The anti-discrimination law prohibits a policy of hiring U.S. citizens, unless that policy is specifically required by federal law. (For example, federal law may require that only U.S. citizens may have jobs that involve sensitive government or security information.)

Other types of prohibited discrimination include:

Demanding specific or additional documents from an employee instead of allowing the employee to present any of the documents listed on the acceptable list of documents for I-9 form completion.

Refusing to hire workers who sound or appear foreign.

Demanding that lawful permanent residents present new “green cards” when theirs expire but not demanding U.S. citizens to produce new documents when theirs expire.

And don’t think that employers who violate the anti-discrimination laws are not getting caught and fined. The OSC has published several cases on its website.

I believe that the OSC has a careful eye on states such as Alabama that have passed their own immigration laws, because it knows that an employer’s initial instinct may be to go beyond the permissible federal boundaries in attempting to comply with state law.